Prince Yaya Adigun & Ors V. The Governor Of Osun State & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C. 

The facts of this case are inextricably interwoven with those of Adigun & 2 Ors. v. The Attorney-General of Oyo State & 18 Ors., (1987) 1 NWLR (Pt. 53) 678 and Adigun & 2 Ors. v. The Attorney-General /of Oyo State & 18 Ors. (No.2), (1987) 2 NWLR (Pt. 56) 197; both of which were decided by this court as a full court, (Obaseki, Eso, Nnamani, Coker, Karibi-Whyte, Kawu and Oputa, J.J.S.C.): The narration of the facts may be follows.

By the Iwo Local Government (Appointment of Chieftaincy Committee) Order, 1978, Oyo State Legal Notice No. 30 of 1978, members of the Chieftaincy Committee of Iwo Local Government were appointed with effect from the 3rd day of May, 1978. The Committee which was vested with the powers to discharge the duties conferred on such a committee by the Chiefs Law, Cap. 19 of the Laws of Western Nigeria, 1959 (now Cap. 21 of the Laws of Oyo State, 1978, applicable to Osun State), consisted of the holders of the following chieftaincy titles –

1. Oluwo of Iwo as Chairman
2. Bale of Ile-Igbo
3. Bale of Oluponna
4. Bale of Kuta
5. Bale of Ikonifin
6. Bale of Ogbagba

Thereafter steps were taken by the Government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo in Iwo Town. The Chieftaincy Committee made a Declaration of the appropriate customary law on the 4th day of January, 1979, which was approved on the 17th day of July, 1979 by the then Military Administrator of Oyo State and was registered on the 19th day of July, 1979. In the Declaration, only one Ruling House, namely that of Ogunmakinde was identified and declared as being in existence. This provoked a spate of protest and petitions which were sent to the office of the Governor of the State. As a result, the Government of Oyo State appointed one Dr. Agiri as sole Commissioner, to carry out discreet investigation into the chieftaincy and present a report for the consideration of the Government. The assignment was carried out. On the Report being submitted to the Government a new Declaration of the customary law regulating the selection to the Oluwo of Iwo Chieftaincy (Exhibit P2)was made by the Governor of the State under S. 19A of the Chieftaincy Law, Cap. 19. The Declaration was signed by the Governor of Oyo State on the 28th day of July, 1981. It was registered on the following day – the 29th day of July, 1981.

Three Ruling Houses were identified in the Declaration. These are –

1. Alawusa
2. Adagunodo
3. Gbase

The Ruling House of Ogunmakinde Ande was not included in the Declaration on the ground that the family of Ogunmakinde Ande is a branch of Alawusa Ruling House. On this account, the Appellants herein decided to challenge the Declaration in court. They filed, an action in the High Court of Oyo State, holden at Oshogbo.

They endorsed the writ of summons with the following claims –

“The plaintiffs claim against the defendants jointly and severally:-

(1) a declaration that (under) the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

(2) a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo chieftaincy, is wrong and accordingly illegal and void.

(3) an injunction restraining all servants, officers and agents of the Government of Oyo State or the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on the 29th July, 1981.”

The case was decided by the High Court. It went to the Court of Appeal and eventually came to this Court as Suit No. Sc. 98/1986. It is the judgment of this Court in the case that is reported in (1987) 1 NWLR (Pt. 53) 678. In the lead judgment of the court, Obaseki J.S.C. with whom all the justices of the full court agreed, concluded thus:-

“The appeal succeeds on the dismissal of claim No. (2) but fails in respect of the dismissal of claims (1). It is desirable that the appellants, i.e. Ogunmakinde Ruling House along with others be heard in an inquiry to ascertain the relevant customary law. The decision of the Court of Appeal is hereby set aside and in its stead. I hereby order that –

(1) Claim 1 be dismissed; Ogunmakinde Ande has not been proved to be the only Ruling House at Iwo from which Oluwo of Iwo is appointed under the customary law of Iwo.

(2) Claims 2 and 3 be granted.

Therefore, the Declaration of the customary law of Iwo regulating the appointment of Olowu of Iwo contained in Exhibit K, is hereby declared null and void.

A proper inquiry to be the basis of a new and proper declaration should be set in motion so that the stool vacancy can be filled with a minimum of delay.

The appellants are entitled to costs assessed at N300.00.”

Not satisfied with this decision, the appellants herein brought an application before the full court purportedly under the inherent jurisdiction of the Supreme Court praying for the following order:-

“(1) that notwithstanding the provisions of Order 8 Rule 16 of the Supreme Court Rules, 1985, this Honourable Court shall entertain the prayers contained in paragraph (ii) of this Motion on Notice.

(2) that the judgments delivered by the Justices of this Honourable Court on the 20th day of March 1987 be amended to read as if –

(a) the decision to dismiss the first claim of the plaintiffs, (i.e. the claim for declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made) were deleted and that there should be substituted therefor a decision granting the said declaration.

(b) all references to orders (in the nature of mandatory or prohibitory injunction or of mandamus or otherwise howsoever) not included among the relief’s claimed by the plaintiffs and directed against the said plaintiffs or directed against any of the other parties to the action were deleted from the said judgments.

(3) Such further or other orders as the Honourable Court may deem fit to make.”

The application was heard and the ruling of the Court was delivered on the 14th day of April, 1987. The application was unanimously dismissed by the full court without any reservation. It is the ruling that is reported in (1987) 2 NWLR (Pt. 56) 197. In expressing his indignation with the application, Obaseki, J.S.C. made the following remarks on p. 212 thereof – ‘

“I would, in conclusion, observe that this Court has in several cases refused to exercise its inherent powers to review its decisions and this is not the first occasion that such application as this is coming before it. Mention maybe made of –

(1) Ashiyanbi v, Adeniji, ,(1967) 1 All NLR 82.

(2) Minister of Lagos Affairs, Mines and Power & Anor v. Akin Olugbade & Ors. (1974) 11 SC. 11.

(3) Chief Iro Ogbu & Ors. v. Chief Ogburu Urum (1981) 4 SC. 1 ,

(4) John Chukwuka & Ors v. N.G. Ezulike, (1986) 5 NWLR (Pt. 45) 892.

(5) Oba Jacob Oyeyipo v. Chief J.O. Oyinloye (1987) 1 NWLR (Pt. 50) 356.

This does not mean that when a proper case comes before the Court in which the Court is satisfied that the matters sought to be amended can be amended within the provisions of the law, it will-not exercise its inherent powers. But it will be scandalous and suspect of improper and corrupt motives, if the Court, after delivering a well considered judgment, Reserved for about three months, were to be allowed to turn round and deliver a different decision. I have no doubt that such conduct will mark the onset of the erosion or confidence in the integrity of the Court and the destruction of the Courts competence to do justice. It will be the death of justice which the Courts are established to administer.

It was for the above reasons that I dismissed the application on the 6th day of April, 1987.”

Still undeterred, like an incorrigible child, the appellants herein brought a fresh action in the High Court of Osun State, at Oshogbo, on the 22nd day of February, 1988, which is the present case on appeal. In the fresh action the 3 appellants are the same as the plaintiffs/appellants in case No. SC.98/1986 except that this time they specifically indicate that they brought the action on behalf of themselves and the Ogunmakinde Ande Ruling House. The defendants in the present case are substantially the same as those in Suit No. SC.98/1986, the only difference being, that the 1st respondent, that is the Military Governor of Oyo State, was added, while the 3rd and 4th respondents in Suit No. SC.98/1986, that is Chief Adiatu Amao and Gbadamosi Adio, were not included. The new claims are as follows:-

“(i) Declaration that in the absence of the Oluwo of Iwo, no new declaration of custom regulating the succession to the Oluwo of Iwo Chieftaincy can be made.

(ii) Declaration that until new Declaration regulating the succession to Oluwo of Iwo Chieftaincy has been made, the Ogunmakinde Ande Ruling House in accordance with the customary law applying to that Chieftaincy is the only Ruling House to present a candidate for the Oluwo of Iwo.

(iii) Declaration that the right of Ogunmakinde Ande to present a candidate for the vacant stool of Oluwo of Iwo had accrued since the judgment of the Supreme Court on 20th March, 1987, which

invalidated both the declaration of 4th January, 1979 and that of 28th July, 1981.

(iv) Declaration that any action of the Defendant jointly and severally that takes or purports to take away the accrued right of Ogunmakinde Ande Ruling House is unconstitutional being retroactive in effect.

(v) Injunction restraining the defendants jointly and severally by their officers, servants and or agents and howsoever from seeking any step whatsoever which may directly or indirectly affect the accrued right of the plaintiffs and or from appointing or causing an appointment of a candidate or candidates from any family other than the Ogunmakinde Ande Ruling House.

(vi) Declaration that after the judgment of the Supreme Court in Suit No. SC.98/1986 of 20/3/87 nullifying the registered declaration of 4th January, 1979 and 28th July, 1981 the Ogunmakinde Ande Ruling House automatically became the only Ruling House in accordance with the Customary Law applying to the Oluwo of Iwo Chieftaincy with accrued right to present a candidate for the Oluwo of Iwo Chieftaincy.”

The case was heard in the High Court by the learned trial Judge (Popoola J.) who dismissed the claims in their entirety on the ground “that there must be an end to litigation.” The appellants appealed against the decision to the Court of Appeal and lost there too. They next appealed to this Court from the decision of the Court of Appeal.

Whilst the appeal was pending in this Court, Oyo State became split into Oyo and Osun States in 1991. Also a new Declaration of the customary law regulating the Chieftaincy of Oluwo of Iwo was made following the dismissal of the action by the High Court and a new Oluwo of Iwo was appointed in the person of the 18th respondent to this appeal. The appellants, therefore, applied to this Court by motion on notice for the Military Governor of Oyo State and the Attorney-General and Commissioner for Justice of Oyo State to be substituted with the Governor of Osun State and the Attorney-General and Commissioner for Justice of Osun State. Also for the 18th respondent – Ashiru Olatunbosun, Tadese, to be joined as respondent to the appeal. The application was heard (Karibi- Whyte, Belgore, Olatawura, Mohammed and Onu, J.J.S.C.) on the 20th day of September, 1993 and was granted as prayer. Hence the present parties to the appeal.

The following issues for determination have been formulated by the appellants

“1. Whether upon a true and proper interpretation of the order of the Supreme Court in SC.96/1986, directing “a proper inquiry” to form the basis of a new and proper declaration to fill the vacant stool of Oluwo of Iwo, it can be rightly said that the Supreme Court contemplated a new declaration outside the provisions of the Chiefs Law of Oyo State applicable in Osun State

2. If the answer to (1) is in the affirmative, is the order in question valid in law under the 1979 Constitution
3. If the said order is invalid on the ground that it is unconstitutional, will it nonetheless support a plea of res judicata coming as it were from the highest court of the land and is not appealable
4. Whether in any event i.e, notwithstanding or apart from issue 3 above, a plea of res judicata can be sustained
5. Whether or Nor the appellants are entitled to succeed on their claim (1), namely “A Declaration that in the absence of an Oluwo of Iwo no new declaration of custom regulating the succession of the Oluwo Chieftaincy can be made, having regard, ipso facto, to the finding of the Court of Appeal, as per the lead judgment of Ogwuegbu J.C.A. as he then was, that it would have been impracticable for the then Government of Oyo State (now Osun State) to hold an inquiry and make a new declaration under the Chiefs law as regards succession to the oluwo of Iwo Chieftaincy title” since the oluwo of Iwo who is the Chairman of the Chieftaincy Committee of Iwo Local Government cannot be there as the stool is vacant
6. In the event of the impracticability, within the provisions of the Chiefs Law, of carrying out the order of the Supreme Court directing an inquiry and a new Chieftaincy declaration to fill the vacant stool of Oluwo of Iwo, is it not incumbent upon the then Government of Oyo State (now Osun State Government) to fill the vacancy by reference to the provisions of the Chiefs Law, which have adequately taken care of the situation arising from the Supreme Court judgment setting aside all previous declarations in respect of the Chieftaincy, that is to; say, to fill the vacancy by reference to Section 36(1) (a) of the Chiefs Law applicable to Osun State
7. Whether the customary law applicable to Oluwo of Iwo Chieftaincy title is sufficiently discernible from the admitted facts in the case for one to rightly say that the then Government of Oyo State (now Osun State) ought to fill by reference to Section 36(1) (a) of the Chiefs Law, the vacant stool of Oluwo of Iwo from Ogunmakinde Ande Ruling House, consistently with the decision in SC.96/1986 that, that ruling house is not the only ruling house to fill the stool
8. Whether any of the steps taken by the then Government of Oyo State (now Osun State) pursuant to the order of the Supreme Court in question in SC.96/1986 in the matter of the selection and appointment of Oluwo of Iwo was valid
9. If all the steps referred to in issue 8 are invalid whether or not they should be set aside”

As there are 3 sets of respondents to the appeal, three sets of respondents’ briefs of, argument have been filed. In the brief of the 1st, 2nd, 4th to 17th respondents, who constitute the first set, three issues have been raised for determination. These are –

“(i) Whether the appellants’ claims (ii) -(iv) before the trial Court, as stated in paragraph 1.02 above, were caught by the legal principle of estoppel per rem judicata”. ‘

(ii) Whether the chieftaincy declaration can be made during an interregnum.

(iii) Whether the appellants have any accrued right to the Oluwo of Iwo Chieftaincy with effect from 26/3/87 when the Supreme Court delivered its Judgment contained in Exhibit D2.”

The 3rd respondent stands alone and he constitutes the 2nd set. Only one issue for determination has been raised in his brief of argument and it reads –

“Whether the appellants are estopped by the judgment of the Supreme Court.”

The 18th appellant constitutes the 3rd set. The following issues have been formulated in his brief of argument –

“4.1 Whether or not the Court of Appeal in part of its reasons for dismissing the appellants’ appeal and affirming the judgment of the High Court was right in its remark that the Government was not obliged to comply with Chiefs Laws and that it would be impracticable to do so ”

4.2 If the answer to the first issue is in the negative then, whether or not the appellants have shown that the error has led to a miscarriage of justice .

4.3 Whether or not the Supreme Court in Exhibit D2 recognised any vested right in the appellants under customary law to enable them fill the vacant stool of Oluwo of Iwo ever before the Order of the Supreme Court in the said exhibit was fully implemented or in the alternative whether or not the Supreme Court judgment in exhibit D2 envisaged the filling of the vacant stool of Oluwo of Iwo before the customary law regulating the succession to the stool of Oluwo of Iwo chieftaincy was ascertained.

4.4 Whether or not the claim of the appellants in the proceedings is caught by the doctrine of estoppel per rem judicatam or is the claim another attempt to circumvent the judgment of the Supreme Court in exhibit D2 ..”

As can be seen from the foregoing the issue of estoppel per rem judicatam is a common thread running through the issues formulated by the appellants and the respondents. As the issue is not only crucial but also fundamental, it behoves us to consider it first.

The plea of estoppel per rem judicatam was raised by the 1st and 2nd sets of respondents in their statements of defence before the High Court. The learned trial Judge found as follows:-

-“On a careful study of the pleadings filed in the present suit and on a meticulous examination of the evidence led thereon by the 2nd plaintiff and his witness, Tiamiyu Ajani, it has become glaringly obvious to me that the issue which also call for determination in considering the plaintiffs’ Reliefs contained not only in plaintiffs’ claims (ii) – (iv) but also in their claim in this suit is the same issue, namely:

Whether the plaintiffs’ Family; that is Ogunmakinde Ande, is the only Ruling House in Iwo entitled to the Oluwo Chieftaincy –

which issue had been previously raised by these same plaintiffs in HOS/15/1982 (Exhibit “D1”) and finally determined by the Supreme Court in Exhibit “D2” . I therefore hold that the issue raised on the pleadings for determination in this present suit is the same issue which had been finally determined by the Supreme Court, that the plaintiffs have cleverly split into Six Claims in this suit. Therefore as Claims (i) – (vi) are basically the same claim I already dismissed by the Supreme Court in Exhibit “D2” , it will amount to allowing the plaintiff to “have a second bite at the cherry” if their’ claims in this suit are entertained by this Court: See (1)Albert Adeoye v. Madam Jinadu, (1975) 5 Sc. 43 at p. 47; (2) Savage & Ors. v. Uwechta (1972) 1 All NLR 251 at pp. 257 – 260; and (3) Madukolu v. Nkemdilim (1962) 1 All NLR587 atp. 593 (1962) 2 SCNLR 341.

For all the foregoing reasons I hold that all the Reliefs claimed by the plaintiffs in this Suit have been caught by the doctrines of “estoppel per remjudicatam” and “issue estoppel” and for that reason the plaintiffs are estoppel from re-litigating and claiming the reliefs sought in this suit against the Defendants.”

In considering the same issue, the Court of Appeal (Ogwuegbu, J.C.A., as he then was, Akpabio and, Agoro J.J.C.A.) also held as follows (per the lead judgment of Ogwuegbu, J.C.A., as he then was):-

“The final issue is the sixth, namely, whether the judgment contained in Exhibit “D2” is’ a bar to any of the reliefs being sought by the appellants…………………………………………………. .

In the case of Idowu Alase v. Sanya Olori-Ilu, supra, (1965) NMLR 66 at p. 67 it was held that the following criteria should be satisfied before the doctrine of estoppel per remjudicatam is to apply: it must be shown that the parties (their privies), the issues and the subject matter are the same in the previous action as those in the action in which the plea is raised. Further requirements are that: it must be established that the judicial tribunal pronouncing the decision had competent jurisdiction in the matter. See Madukolu & Ors. v. Nkemdilem, supra – (1962) 1 All NLR 587 at p. 599 (1962) 2 SCNLR 341. It must be established that the judicial decision is final.

As to the subject matter, it goes without saying that Claim 1 in Suit No HOS/15/82 is split into six in the present action. One needs read the reliefs in both suits to me to a quick conclusion on this. In Suit No. HOS/15/82 which terminated in “Exhibit D2”, Claim 1 was declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

Claims (ii) – (vi) of the present suits even though they were couched in different ways, the appellants are still saying that their Ruling House is the only Ruling House to present a candidate for the vacant stool of Oluwo of Iwo.

Claim 1 in the present suit is an attempt to stop the implementation of the order made by the Supreme Court in Exhibit “D2”. There is no appeal against the said judgment of the Supreme Court being the final Court of Appeal in the land. This court cannot therefore be called upon to make a declaration which runs contrary to the decision of the Supreme Court. The said first claim is indirectly saying that the inquiry should wait until an Oluwo of Iwo is appointed from Ogunmakinde Ande Ruling House. I have therefore no difficulty in coming to the conclusion that the subject matter of the two suits are the same as rightly found by the learned trial Judge.

In the earlier suit the three appellants in the present suit sued in their personal capacities and in the present suit, they sued for themselves and on behalf of Ogunmakinde Ande Ruling House. Exhibit “D2” is equally a final judgment which is binding on the parties. The defendant – the present respondents were the same respondents in Suit No. HOS/l5/82 which terminated in Exhibit “D2” .

Though the present appellants sued in their personal capacities in the earlier suit, the subject matter of that action was for the benefit of the entire Ogunmakinde Ande Ruling House. The earlier litigation was over the right of Ogunmakinde Ande Ruling House to succeed to the stool of Oluwo of Iwo Chieftaincy. They (appellants) are equally parties to the present suit.

I am satisfied that the appellants are estoppel per rem judicatam from relitigating on the same cause of action which they had lost in Appeal No. Sc. 98/1986

The claim which gave rise to this appeal to my mind is another attempt by the present appellants to circumvent the decision of the Supreme Court as they tried to do in the case of Adigun v. The Attorney-General of Oyo State & 17 Ors. (No.2); (1987) 2 NWLR (Pt. 56) 197 when the appellants in the case applied to the Supreme Court to amend its decision in Appeal No. SC.98/1986 (Exhibit “D2) which was reported in (1987) 1 NWLR (Pt. 53) 678.

I have not the least doubt in my mind that the present appeal is a continuous challenge of that same decision of the Supreme Court – Exhibit “D2″. I think it borders on an abuse of process of the Court.”

The appellants herein argue in their brief that in the absence of the holder of the office of Oluwo of Iwo, no declaration of the customary law regulating the appointment to the Chieftaincy of Olowu of Iwo could be made since the Oluwo of Iwo is the Chairman of the Chieftaincy Committee of the competent Local Government Council. As all courts are constitutionally bound to give effect to the provisions of the Chiefs Law, Cap. 21, no court, including the Supreme Court, can make an order which will directly or indirectly marginalise the Chieftaincy Committee as regards the making of a declaration of the applicable customary law. It is then submitted that if the order is made it must have been made by mistake or accident. Therefore a plea of res judicata which is based on such order, if made in subsequent proceedings, would not be granted. The following cases are cited in the brief in support of the submission – Henderson v. Henderson (1843) Hart 100 at p. 115; Mekhanik Evgrafor No.2 (1988) 1 Lloyd’s Report 330.

It seems to me that this is an oblique attack that the Supreme Court had no power to make the order it made in Adigun v. The Attorney-General of Oyo State & Ors. (1987) 1 NWLR (Pt. 53) 678, to the effect that a proper inquiry should be set in motion, as the basis of a new and proper declaration so that the vacancy of the stool of the Oluwo of Iwo could be filled.

The 1st set of respondents contend that both the trial court and the lower court were right in holding that the appellants’ claims were caught by the doctrine of estoppel per rem judicatam. They cited the following cases in support of their submission – Fadiora v. Gbadebo, (1987) 3 SC. 219 at p. 228 – 221; Odjevwedje & Anor v. Echanokpe, (1978) 3 Sc. 47 at p. 98 – 99; (1987) 1WNLR (Pt. 52) 633; Alashe & Anor. v. Olori Ilu & Ors. (1965) NMLR 66 and Madukolu & Anor. v. Nkemdilim (1962) 1 All NLR 587 at p. 599 (1962) 2 SCNLR 341.

It is submitted in the brief of the 3rd respondent that the legal effect of the judgment of the Supreme Court in (1987) 1 NWLR (Pt. 53) 678 is that the appellants cannot relitigate the issue so determined by a further action as between the same parties. Reliance is placed on Cardoso,v. Daniel (1986) 2 NWLR (Pt. 20) 1 at p. 16C, 17 B-C and 18H; Fadiora & Anor v. Gbadebo & Anor (1978) 3 SC. 219 at p. 227 and Ogbelusi v. Fagbolude (1983) 2 SC. 75 at p. 83 – 85.

The brief of the 18th respondent argues that the Order made by the Supreme Court in (1987) 1 NWLR (Pt. 53) 678 is meant to be carried out within the confines of the Chiefs Law and not outside it. It is submitted that the appellants are estopped from relitigating the reliefs claim in the present case.

The doctrine of estoppel per rem judicatam as that of res judicata is a rule of evidence whereby a party (or his privy) is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent court between him and his opponent – see Oduka & Ors. v. Kasumu (1968) NMLR 28 at p. 34.

I think it is relevant to quote here the statement of the principle of estoppel, per rem judicatam as contained in the book – res Judicata by Spencer – Bower and Turner, 2nd Edition, Chapter 1, paragraph 9:-

“The rule of estoppel by res judicata, which, like that of estoppel by representation, is a rule of evidence, may thus be stated: where a final judicial decision has been pronounced by either an English, or (with certain exceptions) a foreign, judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem, any person whatsoever, as against any other person, is estoppel in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as the foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if; but not less, the party interest raises the point of estoppel at the proper time and in the proper manner.” (Italics mine).

By section 54 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990(which was previously section 53 of the Evidence Act) –

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based;

For the section to be successfully pleaded as a defence, the party relying on it has to establish that

(i) the parties or their privies are the same; and

(ii) the facts in issue in both the previous case and the present case are the same.

However, because the principle in this law is also the same as the doctrines of equity in the forms of estoppel per rem judicata the courts have extended the elements to be proved, (See the quotation above) for the defence to succeed, That is part from the parties and the facts of the cases being the same, the party relying on the defence will also have to show that-

(iii) the subject matter of the claim is the same;

(iv) the decision relied upon to support the plea of estoppel per rem judicatam or res judicata must be final and

(v) the court giving the decision is a competent court.

See Alashe v. Ilu, (supra); Chief Esi v. Chief Secretary to the Federation of Nigeria & Ors., (1973) 2 Sc. 189; Modukolu & Ors. v. Nkemdilim (supra) and Board of Custom & Excise v. Kalu, (1965) All NLR 397; 1965 NSCC 307.

When a plea of estoppel per rem judicatam is raised, it is the duty of the trial court to examine the judgment relied upon and say whether it decided the issue pleaded. Similarly, it is legitimate for the trial Judge to make such an inquiry in order to determine the fundamental basis of the judgment. – See Asagba & Anor v. Ogaje & Anor. (1972) 11 SC. 139 at p. 156 and Chief Aseimo & Ors v. Chief Amos & Ors. (1975) 2 Sc. 57 at p. 67. It is, therefore, a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same with those in the current suit. The learned trial Judge in the present case carefully performed this exercise and came to the conclusion that all those elements of Adigun v. Attorney-General of Oyo State & 18 Ors., (1987) 1 NWLR (Pt 53) 678 are the same with those in the present case. The Court of Appeal also found the same and thereby agreed with the findings of the learned trial Judge. Hence concurrent findings of facts have been made. It is trite that in a situation such as this, this Court will not readily interfere with the findings made by the lower courts unless there is some miscarriage of justice or the violation of some principles of law or procedure- See Ometa v. numa (1935) 11 NLR 18 and Stool of Abinabina v. Enyimadu (1952) 12 WACA 171. The appellants have not attach any of the findings and so they stand undisturbed and section 54 of the Evidence Act, Cap. 112 applies. Similarly, there can be no doubt that the judgment of this Court in Adigun v. The Attorney-General of Oyo State & 18 Ors. (1987) 1 NWLR ( Pt. 53) 678 is final and that this court was competent to make the decision, as Adigun v. Attorney-General of Oyo State & 18 Ors. (No. 2), (1987) 2 NWLR (Pt. 56) 197 so confirmed. Therefore, the plea of estoppel per rem judicatam, as found by the lower courts has been established, the appellants are barred from bringing this action. I think it is apposite here to advert to the remarks of Ibekwe, J.S.C in Yoye v. Olubode (1974) 10 SC. 209 at p. 233-224:-

“Res judicata on the other hand, operates not only against the party whom it affects, but also against the jurisdiction of the court itself. The party affected is estopped from bringing a fresh claim before the court. At the same time, the jurisdiction of the court to hear such claim is ousted.

In Odadha v. Okujeni (1973) 11 SC. 343 at p. 353 this court cited with approval, the following illuminating passage from the judgment in the case of Bassil v. Acqual (1954) 14 WACA 569 at p. 572-

“Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who relying upon them, has altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the Court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the Court.”

In Oduka v. Kasumu (1967) 1 All NLR 293 the observation of Holroyd Pearce, L.J. In Morrison Roce and Partners v. Hillman (1961) 2 A.B. 266 at P. 277 was cited by Coker J.S.C in his lead judgment with approval. The observation reads-

“I can find no ground for creating an artificial exception from the general rule of estoppel per rem judicatam by distinguishing res judicata that follow the issue of a writ from those which precede it. The principles which make the latter desirable have no less application to the former, and should be applied to both alike.”

It follows, therefore, that the trial court and by extension the court of Appeal as well as this Court have no jurisdiction to adjudicate on the claims brought by the appellants in the present case. Consequently this knocks the bottom off this appeal. I need only to point out that the substitution of the former 1st and 2nd respondent i.e Military Governor of Oyo State and the Attorney-General of Oyo State with the current 1st and 2nd respondents respectively, which was granted by this Court on 20th September, 1993, has not and cannot affect the decision which I have reached because the latter are the respective successors of the former in office. The 18th respondent was joined according to the appellants brief of argument on the ground that “if the decision of the Court of Appeal affirming the High Court decision which dismissed the appellants’ claims, is over-turned or set aside, the irresistible follow up is on the propriety of the appointment of Ashiru Olatunbosun Tadese, hence his joinder as 18th respondent.” There is no claim against him in the suit in the High Court. He is not, therefore, a party in the action. His presence in the case in this Court could not have affected the plea of estoppel per rem judicatam in the High Court. His name is hereby struck out from the appeal.

The result is that the High court had no jurisdiction to entertain the appellants’ claims. Their (appellants’) action was, therefore, incompetent and it is hereby struck out. All the other issues raised for determination in this appeal become academic. I need not take them into consideration.

This case has clearly illustrated the futility of challenging the decision of this Court, as the apex court in the hierarchy of our court system. Apart from the provisions of section 54 of the Evidence Act, Cap. 112 and the principle of estoppel per rem judicatam. Section 215 of the 1979 Constitution, Cap. 62 of the Laws of the Federation of Nigeria, 1990 provides –

“215. Without prejudice to the powers of the President or the Governor of a State with respect to prerogative of mercy no appeal shall lie to any other body or person from any determination of the Supreme Court.”

The powers of the President and the Governors of the States referred to in the section are limited to criminal proceedings only (see Sections 161 and 192 of the 1979 Constitution). The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation. The justices that man the Court are of course fallible but their judgments are, as the Constitution intends, infallible. Therefore any ingenious attempt by counsel to set aside or circumvent the decision of the Supreme Court will be met with stiff resistance. That is indeed the point which has been brought out by the twists and turns, in this case.

The appeal, therefore, fails and it is hereby dismissed with N1,000.00 costs, in favour of each set of respondents, against the appellants.

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SC.168/1992